Smith v. Smith

• Decision Date: 12 December 1989
• Docket Number: No. 54A04-8902-CV-28,54A04-8902-CV-28
• Parties: Charles H. SMITH, Appellant, v. Debbie Jo SMITH, Appellee.
• Court: Indiana Appellate Court

Page 297

547 N.E.2d 297

Charles H. SMITH, Appellant, v. Debbie Jo SMITH, Appellee.

No. 54A04-8902-CV-28.

Court of Appeals of Indiana,

Fourth District.

Dec. 12, 1989.

James R. Earnshaw, Harding, Henthorn & Harris, Crawfordsville, for appellant.

Terry E. Harris, Young, Harris & Harvey, Crawfordsville, for appellee.

MILLER, Judge.

Charles H. Smith appeals the dismissal, pursuant to Ind.Rules of Procedure, Trial Rule 12(B)(6), of his suit based on an Ind.Rules of Procedure, Trial Rule 60(B)(7) motion which alleged the prospective application of the property settlement portion of the decree dissolving his marriage to Debbie Jo Smith is inequitable. The parties entered into a property settlement agreement which was merged into the divorce decree. The portion of the property agreement/divorce decree complained of provided that Debbie pay Charles $9,500.00, his share of the equity in the marital residence, upon the occurrence of either of two conditions--1) her remarriage, or 2) the sale of the house. Debbie was awarded custody of the parties' two minor children. Debbie has been living with a man--and has not consecrated the relationship by marriage--for three years. They have recently moved out of Charles's and Debbie's old marital residence into a new home. Rather than putting Charles's and Debbie's old house up for sale, Debbie has rented it. Charles alleges these conditions make the prospective application of the divorce decree inequitable and he is therefore entitled to relief under T.R. 60(B)(7). We affirm.

Issue

Charles raises one issue. Restated, it is whether the trial court's grant of the T.R. 12(B)(6) motion was error. ¹

Facts

Charles and Debbie divorced in April of 1985. They entered into a property settlement agreement ² that was merged into their dissolution decree. Debbie was awarded custody of the marriage's two children, Scott Herman (born April 4, 1971) and Stacy Rae (born January 22, 1976). The agreement provided that Debbie be awarded the marital residence subject to the following conditions:

(a) If the Wife shall at any time sell the subject real estate, the Husband shall be paid from the proceeds of such sale, the sum of Nine Thousand Five Hundred ($9,500.00) Dollars, which claim of the Husband shall be a lien upon the proceeds of such sale, or

(b) If the Wife shall remarry, even though she may [not?] sell the real estate, she shall within one (1) year from the date of such remarriage, pay to the Husband the sum of Nine Thousand Five Hundred ($9,500.00) Dollars,....

In July of 1988, Charles filed his Verified Motion for Relief from Judgment and for Modification of Decree. The motion set forth the allegations that although Debbie had not remarried, she resided with a man for approximately three years; that she and the man had moved out of the subject real estate into a newly constructed house; and, that Debbie was not attempting to sell the Smith residence but rather was leasing the property. Charles's motion alleged that Debbie's conduct was such that "it was no longer equitable that the judgment entered by the Court on April 29, 1985 should be given prospective application."

Decision

The basic purpose of a T.R. 12(B)(6) motion to dismiss is to test the legal sufficiency of the complaint to state a redressable claim. Thus, the motion is properly utilized to test the legal sufficiency of the complaint; or stated differently, to test the law of the claim, not the facts that support it. Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391. We review a T.R. 12(B)(6) dismissal to determine whether plaintiff's complaint stated any set of allegations upon which the trial court below could have granted relief. Baker v. American States Ins. Co. (1981), Ind.App., 428 N.E.2d 1342.

T.R. 60(B)(7) provides for relief from judgment if it is no longer equitable that the judgment should have prospective application. In State v. Martinsville Development Co., Inc. (1977), 174 Ind.App. 157, 366 N.E.2d 681, we held a that in order to obtain relief under T.R. 60(B)(7), is necessary that the original judgment have prospective application--meaning that, "a person's right to do or not to do some act is continuously affected by the operation of the judgment, in the future; or that the judgment is specifically directed toward some event which is to take place in the future...." Id. 174 Ind.App. at 163, 366 N.E.2d at 685. In Ingoglia v. Fogelson Companies, Inc. (1988), Ind.App., 530 N.E.2d 1190, we noted that a consent judgment could be modified under T.R. 60(B)(7) if the judgment was provisional, tentative, and involved continuing "supervision of changing conduct or conditions." Id. 530 N.E.2d at 1200. ³

In the instant case, the divorce decree provided that Charles receive his share of the equity in the marital residence upon the occurrence of two conditions entirely under Debbie's control. In Caddo v. Caddo (1984), Ind.App., 468 N.E.2d 593, we reviewed a property division where the wife's obligation to pay the husband his share of the equity in the marital residence did not accrue until the occurrence of one of the following three conditions: 1) her remarriage, 2) the sale of the residence, or 3) the emancipation of the youngest child. We reversed holding that the decree failed to establish the parties' property rights with certainty at the time of the divorce as required by IND.CODE 31-1-11.5-11.

Similarly, in Henderson v. Henderson (1980), Ind.App., 401 N.E.2d 73, we reversed a property division that gave the wife the discretion, when, if ever, to sell the house triggering her obligation to pay the husband for his interest therein. However, we noted our decision would have been different had the parties entered into an agreement as to the disposition of their property pursuant to IND.CODE 31-1-11.5-10.

A property settlement agreement which is incorporated into a court-approved final divorce decree is a binding contract. Duran v. Komyatte (1986), Ind.App., 490 N.E.2d 388 (trans. denied ). The Indiana Dissolution of Marriage Act, I.C. 31-1-11.5-10, expressly encourages settlement agreements. Flora v. Flora (1975), 166 Ind.App. 620, 337 N.E.2d 846.

Parties have more flexibility in crafting their own property settlements than do divorce courts. For example, a trial court may order spousal maintenance only after a showing of incapacitation. But, parties crafting their own agreement may provide for maintenance without such a showing. Steele v. Davisson, Davisson & Davisson (1982), Ind.App., 437 N.E.2d 491.

The disposition of property settled by agreement and incorporated and merged into the decree shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent. I.C. 31-1-11.5-10(c). In the absence of fraud, duress, or undue influence, a property settlement agreement entered into pursuant to I.C. 31-1-11.5-10 may not be modified or revoked. In re Marriage of Bradach (1981), Ind.App., 422 N.E.2d 342 (fraud and undue influence); Hunter v. Hunter (1948), 118 Ind.App. 553, 82 N.E.2d 272 (duress).

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